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COURT'S OPINION

DENNIS K. YAMASE, Chief Justice:

On January, 2 2016, George Skilling, Captain of the Transnational Crime Unit (TCU) for the FSM National Police submitted an Application and Affidavit for Search Warrant to search the FSM Telecommunications Corporation (FSMTC). Captain Skilling presents evidence of a foreign ship registry scheme that licenses ships in the name of the FSM and the affidavit demonstrates probable cause exists to believe that a criminal offense has been committed in violation of Title 32, Chapter II of the FSM Code. This application, however, is irregular and fails to meet the special pleading requirements for electronic searches.

Upon CONSIDERATION, the court denies this application and affidavit for the reasons set forth below.

I. IRREGULARITIES

Pursuant to the FSM Criminal Rule 41, this court has the authority to issue a search warrant "upon the request of a police officer or an attorney for the government." An application is not improper, under the rules of procedure, even though "the prosecuting attorney acts as both the applicant and the affiant for the warrant." 68 AM. JUR. Search and Seizure § 173 at 764 (rev. ed. 2000). "Nowhere in rule 41 is an assistant [attorney general] prohibited from acting as both applicant and affiant for the search warrant." United States v. Segovia, 800 F.2d 39, 41 (2d Cir. 1986). Conversely, a police officer is expressly authorized by law to file an application for a search warrant with the supporting affidavit of probable cause, as long as it is averred to under oath before a judicial officer and in compliance with FSM Criminal Rule 41(c)(1).^1. It is the customary practice, however, for an assistant attorney general to draft, sign, and file the application, supported by the FSM police investigator's affidavit of probable cause.

Second, although the filing is titled Application and Affidavit it appears to be only an affidavit and is not supported by an application. The filing is one document rather than two and it is missing the usual caption. Although this by itself is not necessarily fatal, the court notes that a valid search warrant application must be sufficient in both "form and substance to support the warrant." 79 C.J.S. Searches and Seizures § 73 at 855-56 (1959). It is the customary practice for two separate documents to be filed with the court, an application and the supporting affidavit of probable cause.

Third, the application and affidavit fail to provide the court with a specific statute that has been violated, and instead cites an entire chapter of the FSM Code. Such a filing irregularity could reasonably create sufficient uncertainty as to what crime has been committed therein and if probable cause has in fact been met. However, "[t]here is nothing in the statute relating to search warrants that requires the warrant to refer to the applicable statute but only to show that there is probable cause to believe that 'any misdemeanor or felony is being committed.'" Carpenter v. State, 88 A.2d 180, 180 (Md. 1952). The court notes that while "it is not essential to the validity of a search warrant that it shall mention the particular statute by authority of which it is issued," it is the customary practice to do so. Bratburd v. State, 88 A.2d 446, 449 (Md. 1952).

[20 FSM R. 372d]

Finally, the filing does not contain the usual four draft orders that a judicial officer can sign, to expedite search. While no one of these irregularities is in itself fatal, the sum total is approaching an impermissible level of form, and the court notes that these errors would likely have been cured if the affidavit had been filed with a separate application for a search warrant from the Government.

II. ELECTRONIC RECORDS

Pursuant to FSM Criminal Rule 41(c)(1), the judicial officer shall issue a warrant identifying the "property or persons to be seized and naming or describing the person or place to be searched." "The fourth amendment was intended to make general search warrants impossible." 3A CHARLES ALAN WRIGHT & SARAH N. WELLING, FEDERAL PRACTICE AND PROCEDURE § 668, at 92 (2010). "Thus a warrant cannot stand if it is too broad or vague." Id. The warrant must be specific in designating what is to be seized, where, from whom and on what grounds." Id. at 92-93. "To avoid turning a limited search for particular information into a general search of office file systems and computer databases," the courts have established special particularity requirements for searching electronic databases. United States v. Comprehensive Drug Testing Inc., 621 F.3d 1162, 1170 (9th Cir .2010); see United States v. Tamura, 694 F.2d 591, 595 (9th Cir. 2000) ("wholesale seizure . . . has been characterized as the kind of investigatory dragnet that the fourth amendment was designed to prevent"). There must be "limitations on the time . . . and specific records . . . to be seized." United States v. Abrams, 615 F.2d 541, 543 (1st Cir. 1980).

This warrant asks for all of the e-mail records and all of the phone records from the FSMTC without limitation on time or content. Ordinarily, searches of e-mail should be limited by subject line, address line, or to specific matters. Nevertheless, on rare occasions, the police may have reason to believe that all of the records in a particular e-mail address contain evidence of a crime. The court finds that this is such a case, however, the warrant request must also specify the time limitations on the search.

ACCORDINGLY, the application for a search warrant is DENIED for a want of proper form, substance, and specificity. The application should be resubmitted according to the customary practice and constitutional limitations for electronic searches.

^1. The authority to file a search warrant can be granted by statute without being considered unauthorized practice of law, and has even been delegated to groups of citizens to enforce cruelty to animal laws. See Commonwealth v. Barnes, 629 A.2d 123, 127 (Pa. Super. Ct. 1993) ("not an improper delegation of governmental authority").